United States v. Faison ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Faison No. 01-6344
ELECTRONIC CITATION: 2003 FED App. 0280P (6th Cir.)File Name: 03a0280p.06 UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee. ON BRIEF: Michael J. Stengel, STENGEL LAW
UNITED STATES COURT OF APPEALS OFFICE, Memphis, Tennessee, for Appellant. Thomas L.
Parker, UNITED STATES ATTORNEY, Memphis,
FOR THE SIXTH CIRCUIT Tennessee, for Appellee.
_________________
_________________
UNITED STATES OF AMERICA , X OPINION
Plaintiff-Appellee, - _________________
-
- No. 01-6344 GORDON J. QUIST, District Judge. Defendant, Lavadius
v. -
> Faison, was charged with conspiring to possess with intent to
, distribute more than five kilograms of cocaine in violation of
LAVAD IUS FAISON , - 21 U.S.C. § 846. He pled guilty and was sentenced to 151
Defendant-Appellant. - months incarceration to be followed by five years of
N supervised release. The sole issue on appeal is whether the
Appeal from the United States District Court district court erred in enhancing Faison’s sentence by two
for the Western District of Tennessee at Memphis. points for possessing a dangerous weapon in connection with
No. 99-20250—Thomas A. Wiseman, Jr., the offense. U.S.S.G. § 2D1.1(b)(1). We hold that the
Senior District Judge. district court did not err.
Argued: June 19, 2003 The indictment charged Faison with participating in the
cocaine conspiracy from about January 1, 1998, up to and
Decided and Filed: August 11, 2003 including November 1, 1999. Faison was arrested at his
home on about January 29, 2001, over a year after the charged
Before: DAUGHTREY and ROGERS, Circuit Judges; end date of the conspiracy. When he was arrested, Faison’s
QUIST, District Judge.* home was searched, which resulted in the seizure of about
$70,000 in currency, jewelry with an appraised value of
_________________ $151,000, a loaded .454 caliber Taurus pistol, two boxes of
pistol ammunition, a small amount of marijuana, documents
COUNSEL indicating Faison’s use of false names, and digital scales. A
search of Faison’s common law wife’s Lexus vehicle, which
ARGUED: Michael J. Stengel, STENGEL LAW OFFICE, was parked in the garage of the house, yielded a loaded Kal-
Memphis, Tennessee, for Appellant. Scott F. Leary, Tec .30 caliber pistol. At the time of his plea, Faison
admitted that the $70,000 seized was “drug proceeds,” and he
conceded that the money was “either for the sale of cocaine
*
or to be used to purchase cocaine or both.”
The Honorable Gordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
1
No. 01-6344 United States v. Faison 3 4 United States v. Faison No. 01-6344
Faison does not argue that the firearms and ammunition with the proximity of the firearm and the drugs at the
found in the home or the vehicle were clearly not related to specific time of the offense of conviction . . . .
drug trafficking. Indeed, in light of his own admission of
drug trafficking and the fact that the firearms were located United States v. Mumford, 25 F.3d 461, 469 (7th Cir. 1994)
close to the drug proceeds or cash with which to purchase (citations omitted).1 See USSG Appendix C, amend. 394.
drugs, he could not make such an argument. See, United
States v. Moses, 289 F.3d 847, 850 (6th Cir. 2002); United Relevant conduct under the sentencing guidelines includes
States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002). Rather, “all acts and omissions . . . that were part of the same course
Faison argues that the fourteen month delay from the end date of conduct or common scheme or plan as the offense of
of the charged conspiracy, to the date that he was arrested and conviction.” U.S.S.G. § 1B1.3(a)(2). In order for the cocaine
the firearms and money were found, bars the dangerous dealing in 2001 to be part of the same course of conduct as
weapon enhancement from being applied because the firearms the offense conduct, the court must examine “the degree of
were not shown to have been connected to the offense similarity of the offenses, the regularity (repetitions) of the
conduct - the conspiracy which was alleged to have offenses, and the time interval between the offenses.” Hill, 79
concluded in November 1999. F.3d at 1481-82. In order for the 2001 cocaine dealing to be
Faison’s argument would have had some merit before
November 1, 1991. Prior to that date, in order for this 1
Some post-1991 Sixth Circuit cases—primarily in reliance on the
enhancement to apply, the dangerous weapon would have had pre-1991-amend ment case United States v. Sanchez, 928 F.2d 145 0 (6th
to have been possessed during the commission of the offense. Cir. 1991)— have continued to repeat the “during the commission of the
Effective November 1, 1991, however, the guidelines offense” language when treating other issues, like who has the burden of
removed the requirement of the weapon being possessed showing possession. See United States v. Stewart, 306 F.3d 295, 326 (6th
Cir. 20 02); United States v. Miggins, 302 F.3d 384, 39 1 (6th Cir. 2002);
during the commission of the offense. Since that date, all that Moses, 289 F.3d at 850; Hough, 276 F.3d at 894; United States v. Bender,
the government need show is that the dangerous weapon be 265 F.3d 464, 474 (6th C ir. 200 1); United States v. Ha rdin, 248 F.3d 489,
possessed during “relevant conduct.” As stated by the United 497 (6th Cir. 20 01); United States v. Dunlap, 209 F.3d 472, 47 6 (6th Cir.
States Court of Appeals for the Seventh Circuit: 2000); United States v. Saikaly, 207 F.3d 363, 368 (6th C ir. 200 0); United
States v. Owusu, 199 F.3d 32 9, 347 (6th Cir. 200 0); United States v.
The Sentencing Commission, by extracting the Pru itt, 156 F.3d 638 , 649 (6th C ir. 199 8); United States v. Elder, 90 F.3d
1110, 1134 (6th C ir. 199 6); United States v. Hill, 79 F .3d 1 477 , 148 5 (6th
restriction that a dangerous weapon be possessed during Cir. 199 6); United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir. 1995);
the commission of the offense of conviction for the United States v. Calhoun, 49 F.3d 231, 236 (6th Cir. 1995). But the
enhancement to apply, expanded the scope and “during the commission of the offense” language is dictum with respect
applicability of the weapons enhancement. This deletion to the issue presented in this case, beca use in all of those cases the disp ute
represents a conscious choice to alter the applicability of concerned only whether the gun was possessed during the offense of
conviction, and hence in those cases we had no need to consider the
§ 2D1.1(b)(1). Without this restriction in the Guidelines, “relevant conduct” pro visions. F urther, the word “offense” is define d in
the criminal defendant . . . is now fair game for the the guidelines as “the offense of conviction and all relevant conduct under
application of the rules of relevant conduct to the §1B 1.3 (Relevant C onduc t).” U.S .S.G. § 1B 1.1, cmt. n.1(k); see also
weapons enhancement . . . Accordingly, district courts United States v. Roederer, 11 F.3d 973, 982 (10th Cir. 1993) (noting that
must no longer limit their review to the evidence dealing “[t]he amended version [o f § 2D1.1(b)(1)] now conforms to U.S.S.G.
§ 1B1.1 (comment. n.1([k])”). Consequently, our prior statements do not
supp ort Faison's argument.
No. 01-6344 United States v. Faison 5
part of a common scheme or plan relating to the offense of
conviction, the 2001 conduct must be substantially connected
by at least one common factor such as “common victims,
common accomplices, common purpose, or similar modus
operandi.” Id. Faison was guilty of a conspiracy to traffic in
cocaine through October 1999, and his possession of $70,000
in drug proceeds together with his admission at the time of his
plea shows him to be a continuing cocaine trafficker when he
was arrested in January 2001. Faison’s continuing cocaine
trafficking constitutes the same course of conduct and has a
common purpose as his offense of conviction. Therefore, the
possession of the dangerous weapons during drug trafficking
in 2001 was conduct relevant to the offense of conviction.
Because Faison possessed dangerous weapons during the
course of relevant conduct, the two point enhancement
pursuant to U.S.S.G. § 2D1.1(b)(1) was appropriate. Faison’s
sentence is, therefore, AFFIRMED.